TS v Constable Courtney James  NSWSC 984: an appeal against the making of a forensic procedure order by a magistrate under Part 5 of the Crimes (Forensic Procedures) Act 2000
Steven Milesi, CSO Senior Solicitor, Inquiries
A prerequisite for the making of the order was the establishment, on the balance of probabilities, that there were reasonable grounds to believe that TS, the suspect, had committed the offence being investigated: s. 24(3)(a),Crimes (Forensic Procedures) Act 2000 (the CFP Act).
An affidavit was tendered in the hearing below over the objection of TS. The affidavit referred to out of court statements made by persons not called in the hearing, including those of an accomplice implicating TS in the alleged offending.
Justice Adamson expressly noted the common ground of the parties that the Evidence Act 1995 applied to the proceeding below. However, the exact manner of its application was disputed.
TS argued, amongst other matters, that various parts of the evidence had been admitted in contravention of ss. 59 (hearsay rule) and 83 (third party admissions).
The applicant argued that s. 24(3)(a) requires a magistrate to evaluate the information put forward and to determine whether it constitutes reasonable grounds for the required belief: Walker v Budgen  NSWSC 898 at ; Loughnan v Magistrates' Court of Victoria  VR 684 at 697. The applicant asserted that it does not require a finding, even to some prima facie stage, of the facts said to constitute the offence: see Loughnan at 692. The assent of belief is given on more slender evidence than proof: George v Rockett (1990) 170 CLR 104 at 116. Consequently, evidence of an out of court representation is not adduced to prove the existence of the facts it can reasonably be supposed the maker intended to assert by the representation: L v Lyons (2002) NSWLR 600 at 612; Loughnan at 692. It is adduced to establish the fact of what has been reported to the applicant directly or otherwise. Its admission for that purpose does not contravene ss. 59(1), 81 or 83 of the Evidence Act 1995.
The above approach is consistent with the scope of the hearings permitted under
the CFP Act. A suspect is only, as a matter of right, permitted to cross-examine the applicant. The Legislature intended that the applicant serve as the conduit for the evidence going to the requirements specified in s. 24, unless a magistrate is of the opinion that there are substantial reasons why, in the interests of justice, a suspect should be permitted to call or cross-examine another witness: s. 30(6).
Justice Adamson did not determine this dispute as the appeal succeeded on another ground (that the magistrate took into account telephone intercept evidence notwithstanding that admission of the evidence was prohibited by s. 63 of the Telecommunications (Interception and Access) Act 1979 (Cth)). However, her Honour observed that reasonable grounds for belief has, in other contexts, included material of a "hearsay nature".
The forensic procedure order was stood aside and the matter remitted to the Local Court to be determined in accordance with law, including the Evidence Act 1995.